High court ruling frees state agencies from absorbing FOI expenses

Neil Vigdor

Updated 10:31 pm, Thursday, January 31, 2013

Connecticut's highest court ruled this week that state agencies are allowed to pass licensing fees on to citizens when furnishing them with copyrighted public records, dealing what one sunshine law advocate says is a major blow to open access.

The state Supreme Court sided with state Department of Energy and Environmental Protection Tuesday in a 5-year-old records dispute, ruling that it has the authority to charge $25 every time a member of the public requests a printout of an aerial photo contained in a highly sophisticated taxpayer-funded database.

The decision is a reversal of the position taken by the state Superior Court in New Britain that the agency had to absorb the licensing fees associated with its geographic information system, colloquially known as GIS.

An increasingly popular tool used by decision-makers in the public sector that contains measurements and other data on topography, infrastructure and utilities, the GIS used by the state's environmental protection agency contains some 400,000 images.

Stephen Whitaker, the Greenwich-based computer consultant who requested a digital copy of the materials under the state Freedom of Information Act, including the supporting data and the software it runs on, said the ruling allows government agencies to use licensing fees and copyrights to restrict access to public records.

"I don't necessarily need the material. I need to see that the law around Freedom of Information and accountability of government decisions keeps up with technology," Whitaker said. "It appears to be a losing battle."

Matthew Levine, an assistant attorney general for the state who is assigned to environmental cases, applauded the high court's ruling.

"I thought the Supreme Court did a nice balance here between the public's right to have access to this information and the right to companies to have their proprietary stuff protected," Levine said.

Whitaker is no stranger to public records litigation over GIS data, having gone through similar hoops in his home state of Vermont and in Greenwich.

In 2005, Connecticut's high court awarded Whitaker access to property data and high-resolution photos of Greenwich.

When Whitaker filed a public records request with the state, Connecticut's environmental protection agency balked, claiming it was bound by a licensing agreement with Pictometry, the Rochester, N.Y., company that created that database in exchange for a fee of $793,000.

"To me, that drives a huge wedge in (the Freedom of Information Act)," Whitaker said.

A message seeking comment from Pictometry was left Thursday with a representative of the company.

Whitaker was rebuffed in his bid to obtain the software and what is known as metadata that goes along with the photos, with the state Freedom of Information Commission ruling that both were trade secrets and proprietary material belonging to Pictometry.

In this week's ruling, the high court said that absorbing licensing fees would create a hardship for state agencies.

"It is apparent to us that a rule barring public agencies from passing on such costs would constitute an effective prohibition, or a least a drastic limitation, on their use of copyrighted materials," the justices wrote. "For example, in the present case, if the commission determines on remand that Whitaker wants and is entitled to copies of all of the 400,000 photographic images stripped of the metadata, the DEP would be required to pay Pictometry more than $9 million to provide them."

Whitaker said that it's crucial for citizens to have the same informational tools as the government.

"If government is going to use this stuff for emergency response or calculating the height of your fence or the distance from the edge of your building to your property line, how are you going to counter that if their evidence is based on this computer tool?" Whitaker said.

Levine said the state offered to make reasonable accommodations for Whitaker to access the information.

"DEEP never took a position that he couldn't come in and look at all the images digitally," Levine said.

"It was never anything like trying to shield the disclosure of this. He said, `No, I want everything,' " Levine said.